Orlando Tavarez v. ALLAN KLINGENSMITH On Appeal from the District Court of the Virgin Islands Division…

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-2815
ORLANDO TAVAREZ,
Appellant
v.
ALLAN KLINGENSMITH
_____________________
On Appeal from the District Court
of the Virgin Islands
Division of St. Croix, Appellate Division
(D.C. Civil No. 99-cv-00212)
Chief District Judge:
Honorable Raymond L. Finch
District Judge:
Honorable Thomas K. Moore
Territorial Judge:
Honorable Brenda J. Hollar
_____________________
Submitted pursuant to
Third Circuit LAR 34.1
May 7, 2004
Before: BARRY, AMBRO and SMITH,
Circuit Judges
(Filed: June 15, 2004)
Joel H. Holt, Esq.
Law Offices of Joel H. Holt
2132 Company Street, Suite 2
Christiansted, St. Croix
United States Virgin Islands 00820
Counsel for Appellant
Susan B. Moorehead, Esq.
John E. Stout, Esq.
Sandra A. Nabozny-Younger, Esq.
Grunert, Stout & Bruch
24-25 Kongensgade, P.O. Box 1030
Charlotte Amalie, St. Thomas
United States Virgin Islands 00804
Counsel for Appellee
_______________________
OPINION OF THE COURT
_______________________
SMITH, Circuit Judge
This appeal requires that we
determine whether the immunity afforded
to an employer under the Workers’
Compensation Act of the Virgin Islands
shields Allan Klingensmith, Orlando
Tavarez’s supervisor, from personal
liability for allegedly tortious acts
committed as a manager of the employer’s
business. We conclude that the injured
employee’s suit against his supervisor is
barred and affirm the judgment of the
Appellate Division.1
I.
The facts are not disputed. In 1995,
1See Tavarez v. Klingensmith, 267
F.Supp. 448 (D.V.I. 2003).

-- 1 of 7 --

2
Orlando Tavarez was employed by V.I.
Cement & Building Products, Inc. (“VI
Cement”). His duties included driving a
dump truck. During early 1995, Tavarez
asked Allan Klingensmith, one of VI
Cement’s managers, to replace the tires on
Tavarez’s truck. Although Klingensmith
agreed to change some of the tires, he
refused to grant permission to have the left
front tire of the truck replaced. On March
21, 1995, the left front tire blew out while
Tavarez was driving the truck and he was
seriously injured.
Tavarez filed a claim under the
Virgin Islands Workers’ Compensation
Act (“WCA” or the Act), 24 V.I.C. § 250
et seq., and was awarded benefits.
Thereafter, Tavarez filed this negligence
action in the Territorial Court of the Virgin
Islands alleging that Klingensmith was
personally liable for the injuries Tavarez
sustained. Tavarez averred that
Klingensmith was liable because he had
refused, as VI Cement’s manager, to grant
Tavarez’s request to replace the left front
tire on the dump truck. According to
Tavarez, his injuries were the direct and
proximate result of Klingensmith’s refusal.
Klingensmith moved for summary
judgment, contending that he was immune
from suit under the WCA. The Territorial
Court denied the motion and the matter
proceeded to trial. The evidence at trial
established that K ling ens mith , as
Tavarez’s supervisor, had refused to grant
Tavarez’s request to replace the left front
tire of the truck. At the close of the
evidence, Klingensmith moved for
judgment as a matter of law, reiterating his
contention that he was immune from suit
under § 284 of the WCA. The Territorial
Court granted the motion and explained
that Klingensmith, in his capacity as a
manager of VI Cement, had failed to grant
permission to replace the tire and that this
omission occurred “solely and only
because of the employment relation
between the parties.” As a result, the
Territorial Court determined that
Klingensmith had breached the employer’s
non-delegable duty to provide a safe
workplace and that Klingensmith was
entitled to the immunity afforded
employers under the WCA.
Tavarez filed a timely appeal with
the Appellate Division of the District
Court of the Virgin Islands. The Appellate
Division affirmed the decision of the
T e r r i t o ri a l C o u r t , h o ld i n g t h at
Klingensmith was immune under the
WCA.2
II.
Because Tavarez claims that the
express language of the statute allows him
to assert a negligence claim against his
supervisor, we begin with the plain text of
the statute. United States v. Ron Pair
2The Appellate Division of the District
Court had jurisdiction pursuant to 48
U.S.C. § 1613a(b). We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291
and 48 U.S.C. § 1613a(c). We exercise
plenary review over issues of statutory
interpretation. Moody v. Sec. Pac. Bus.
Credit, Inc., 971 F.2d 1056, 1063 (3d
Cir. 1992).

-- 2 of 7 --

3
Enter., 489 U.S. 243, 241 (1989). If the
statutory language of § 284(b) is
susceptible to different interpretations, we
must look to the surrounding words and
provisions and their context. Whitman v.
Am. Trucking Ass’n, 531 U.S. 457, 466
(2001). This requires applying the
“cardinal rule that a statute is to be read as
a whole, . . . since the meaning of statutory
language, plain or not, depends on
context.” King v. St. Vincent’s Hosp., 502
U.S. 215, 221 (1991) (internal citation
omitted). If possible, we must “‘give
effect . . . to every clause and word of a
statute,”’ Duncan v. Walker, 533 U.S. 167,
174 (2001) (quoting United States v.
Mensache, 348 U.S. 528, 538-39 (1955)),
and be “‘reluctan[t] to treat statutory
terms as surplusage.’” Id. (quoting Babbitt
v. Sweet Home Chapter of Cmtys. for a
Great Oregon, 515 U.S. 687, 698 (1995)).
To that end, we must be mindful of the
application of the statutory canon of
“ejusdem generis, . . . ‘[w]here general
words follow specific words in a statutory
enumeration, the general words are
construed to embrace only objects similar
in nature to those objects enumerated by
the preceding specific words.’” Circuit
City Stores, Inc. v. Adams, 532 U.S. 105,
114-15 (2001) (quoting 2A N. Singer,
Sutherland on Statutes and Statutory
Construction § 47.17 (1991)). In matters
of statutory construction, we may consider
the legislative history, as well as the
“‘atmosphere in which [the statute] was
enacted.’” New Rock Asset Partners v.
Preferred Entity Advancements, Inc., 101
F.3d 1492, 1498 (3d Cir. 1996) (quoting
Carteret Savings Bank, F.A. v. Office of
Thrift Supervision, 963 F.2d 567, 574 (3d
Cir. 1992)); see also Hudson United Bank
v. Chase Manhattan Bank of Conn., 43
F.3d 843, 849 n.14 (3d Cir. 1994)
(observing that “consideration of
legislative history would be appropriate”
in appeal involving statutory construction
of venue provision of the Financial
Institution Reform, R ecovery, and
Enforcement Act).
Most of the Virgin Islands WCA
has been in existence since 1954. See
Anthony v. Lettsome, 22 V. I. 328, 329
(D.V.I. 1986); 24 V.I.C. ch. 11, historical
ann. The Act mandates that “[e]very
employer shall pay compensation as . . .
specified for the disability . . . of an
employee resulting from a personal injury
. . . arising out of and in the course of his
employment, irrespective of fault.” 24
V.I.C. § 252(a). Employers fulfill this
obligation by insuring against liabilities
with the Government Insurance Fund. 24
V.I.C. § 272. When an employer is
insured, the injured employee’s right to
obtain compensation from his employer is
limited to the remedies set forth in the
WCA. 24 V.I.C. § 284(a).
In 1984, the Virgin Islands’
legislature amended the WCA, adding §
263a, which provides:
It shall not be a defense to
any action brought by or on
behalf of an employee, that
the employee at the time of
his injury or death, was the
borrowed, loaned, or rented
e m p l o y e e o f a n o t h er

-- 3 of 7 --

4
employer. Any oral or
written agreement between
an employer and employee
which makes the employee
the borrowed, loaned, or
rented employee of another
employer shall be null and
void as being against the
public policy of this
Territory.
24 V.I.C. § 263a; see Vanterpool v. Hess
Oil Virgin Islands Corp., 766 F.2d 117,
119 n.1 (3d Cir. 1985). This amendment
made explicit that the immunity afforded
by § 284(a) did not shield a borrowing
employer from liability under the common
law.
Two years later, in 1986, the
legislature enacted § 284(b), which
provides:
For the purposes of this
section, a contractor shall be
deemed the employer of a
subcontractor’s employees
only if the subcontractor
fails to comply with the
provisions of this chapter
with respect to being an
insured employer. The
“statutory employer and
borrowed servant” doctrine
are not recognized in this
jurisdiction, and an injured
employee may sue any
person responsible for his
injuries other than the
employer named in a
certificate of insurance
issued under section 272 of
this title.
24 V.I.C. § 284(b). Although this
provision was substantively similar to §
263a, this new provision was applicable to
all claims pending on the effective date of
the Act. See Nieves v. Hess Oil Virgin
Islands Corp., 819 F.2d 1237, 1241 (3d
Cir. 1987).
III.
Tavarez argues that the “express
language of the statute . . . clearly permits
a claim against a co-worker or supervisor
for their specific negligent acts which
cause injury.” According to Tavarez, this
is evident from the fact that § 284(b)
allows an injured employee to sue any
person except the employer named in the
certificate of insurance issued pursuant to
§ 272 of the WCA. See 24 V.I.C. §
284(b). In short, Tavarez contends that
immunity under the WCA is limited to the
employer named in the certificate of
insurance.
Tavarez is correct that § 284(b),
like § 263a, limits those persons who may
be entitled to the immunity afforded under
the WCA. The plain words of these
statutory provisions elimin ate the
possibility that a borrowing employer or a
statutory employer may qualify as an
“employer” entitled to immunity under §
284(a) of the WCA. Indeed, the initial
clause of the second sentence of § 284(b)
abrogates the viability of the statutory
employer or borrowed servant doctrine in
the Vir gin Islands for wo rkers’
compensation purposes and expressly

-- 4 of 7 --

5
allows that an injured employee may sue a
secondary employer who is not named in
the certificate of insurance.
Tavarez argues, however, that §
284(b) is broader. He contends that the
right to sue “any person” in the second
sentence of subsection (b) encompasses
the right to sue his supervisor regardless of
the fact that his employer is entitled to
immunity under the Act. At first blush, the
apparent breadth of the term “any person,”
combined with the fact that Klingensmith
was not personally named in the certificate
of insurance, appears to give Tavarez’s
argument some support.
However, upon examination of the
statutory scheme of the WCA as a whole,
we conclude that § 284(b) is not so
sweeping as Tavarez would have us hold.
First, while § 284(b) limits who is entitled
to immunity under the WCA, scrutiny of
the plain language of § 284(b) fails to
reveal any intent by the Virgin Islands’
legislature to address whether an injured
employee may initiate a civil action against
a co-employee or a supervisor of the same
employer.
Second, the broad reading of §
284(b) that Tavarez urges would frustrate
the exclusivity of the remedy available
under the WCA. The exclusivity provision
would be undermined because a corporate
employer “can act only through its agents”
and the “acts of corporate . . . employees
on behalf of the corporation are the acts of
the corporation.” Tunis Bros. Co. v. Ford
Motor Co., 763 F.2d 1482, 1496 n.21 (3d
Cir. 1985), rev’d and remanded on other
grounds, 475 U.S. 1105 (1986). For that
reason, an employer would normally
indemnify or assume the defense of its
employee sued for negligence. The
employer, however, is supposed to be
immune under § 284(a) from liability for
injuries sustained by its employee arising
out of and in the course of employment.
Therefore, despite the immunity afforded
under § 284(a), an employer may
ultimately be faced with defending itself as
a principal vicariously liable for the acts of
its agents who may have caused another
employee’s injuries.
Application of the statutory canon
of ejusdem generis yields a more logical
result. That is, the general term “any
person” in the second sentence of § 284(b)
is a reference to the preceding specific
t e r m i n o lo g y d i s c u s s i n g s t a t u t o ry
employers and borrowed servants. Thus,
§ 284(b) alters only the immunity that
statutory employers previously enjoyed,
subjecting these statutory employers to
personal liability if they are not named in
the certificate of insurance.
This interpretation is consistent
with the history surrounding § 263a and §
284(b) of the WCA. As the Vanterpool,
766 F.2d at 119, and Nieves, 819 F.2d at
1240-41, decisions pointed out, both
sections were in response to ongoing
litigation regarding a borrowed employee’s
right to recover from his borrowing
employer. Indeed, in Gass v. Virgin
Islands Tel. Corp., 311 F.3d 237, 245 (3d
Cir. 2002), we noted that an explanation
attached to the bill enacting § 284(b)
stated:

-- 5 of 7 --

6
This bill is needed to assist
person [sic] who are injured
while on the job . . . This
need arises because the
c o u r t s h a v e b e e n
interpreting Section 284 of
Title 24 of the Workmen’s
Compensation Act to grant
immunity not only to a
w o r k e r ’ s i m m e d i a t e
employer, but also to
s e c o n d a r y e m p l o y e r s
although the Legislature
never intended immunity for
t h e s e s e c o n d a r y
wrongdoers.
Id. at 245 (quoting Bill No. 498, 16th
Legislature (1986)). Notably absent from
§ 284(b) or this explanation is any
expression of intent to expose the
supervisors of an injured employee to
personal liability.
In sum, we conclude that § 284(b)
relates only to the liability of secondary
employers and does not affect the ability
of an injured employee to sue his
supervisor for tortious acts committed in
his managerial capacity.3
IV.
Although § 284(b) does not allow
Tavarez to proceed with his personal
liability suit against Klingensmith, we
have yet to determine whether the
employer’s immunity under § 284(a) of the
WCA extends to a supervisor for acts
committed as a manager of the employer’s
business. The Appellate Division of the
D i s t r ic t C o u r t d e t er m i n e d t h a t
Klingensmith was immune from liability
because the duty which he breached, by
refusing to change the tire, was the
employer’s non-delegable duty to provide
a safe workplace. This rationale is
consistent with the statutory scheme of the
WCA and general principles of agency
law. See Restatement (Second) of Agency
§ 492 (1958); Tunis Bros. Co., 763 F.2d at
1496 n.21 (observing that corporation can
act only through its agents). Thus, we
conclude that the immunity afforded to an
employer under the WCA also shields a
supervisor from personal liability for harm
caused by his negligent failure to provide
a safe workplace for the employer’s
workers.4
3We recognize that § 263 allows for
claims against third persons responsible
for an employee’s injuries and provides a
right of subrogation to the Administrator.
Tavarez did not rely on § 263 below, nor
does he even mention the provision here.
For that reason, we have limited our
analysis, as argued by Tavarez, to §
284(b).
4We recognize that there are several
decisions in which a co-worker was held
personally liable because the breach in
those cases was of a personal duty, such
as exercising care in driving a vehicle or
in handling dangerous materials. See
Lettsome, 22 V.I. at 328; Stokes v.
George, Civ. No. 401-1998, (Terr. Ct.
V.I. Sept. 4, 1998). We need not
determine whether a co-worker or
supervisor may be personally liable

-- 6 of 7 --

Accordingly, we affirm the
judgment of the Appellate Division.
under such circumstances inasmuch as
the breach in this case was of the
employer’s non-delegable duty to
provide a safe workplace.

-- 7 of 7 --